Fmv v Tzb [2021] NZSC 102, 20 August 2021
- Court
- Supreme Court
- Judgment
- 20 August 2021
- Neutral
- [2021] NZSC 102
Areas of law
Judgment analysis
AI-generated summary
It can misstate holdings, facts, or citations. Always confirm against the judgment PDF.
Facts
FMV was employed by TZB for one year from February 2009 to February 2010. Almost seven years later, in December 2016, she filed parallel proceedings in the Employment Relations Authority and the High Court. In the Authority, she claimed a personal grievance for unjustifiable dismissal and disadvantage, alleging bullying and discrimination. In the High Court, she brought a tort action in negligence, alleging TZB breached duties of care which caused her psychiatric harm. Prior to these proceedings, a mediation under the Human Rights Act 1993 did not proceed due to concerns over FMV's mental health. The Authority stayed its proceedings, citing concerns about FMV's capacity to continue and requiring her to provide up-to-date medical evidence. After making no progress in the Authority, FMV served the High Court proceedings. TZB successfully applied to have the High Court claim struck out on the basis that the Authority had exclusive jurisdiction and that the proceeding was an abuse of process. The Court of Appeal upheld this decision, leading to the present appeal in the Supreme Court.
Held
- Whether a dispute is an 'employment relationship problem' under the Employment Relations Act 2000 is a factual inquiry, determined by whether the controversy arises during the course of an employment relationship and in a work context, not by the legal form or cause of action pleaded.
- The exception for an 'action founded on tort' in s 161(1)(r) of the Employment Relations Act 2000 is a narrow exception that applies only to the 'any other action' catch-all in that sub-paragraph. It does not exclude from the Employment Relations Authority's exclusive jurisdiction a problem that can be framed as a specific matter within its jurisdiction, such as a personal grievance under s 161(1)(e), even if the same facts could also found a tort claim.
Glazebrook J dissenting; William Young J concurring.
Orders
The High Court’s suppression order is amended to suppress only the identities of the parties and to remain in force so long as the suppression order made by the Employment Relations Authority remains in force. The appeal is otherwise dismissed. Costs are reserved.
Key passages8
The Employment Relations Act 2000 establishes specialist employment bodies, the Employment Relations Authority and the Employment Court, to which disputes about work are channelled.
“A common feature of the legislative response from the beginning has been to channel disputes about work to specialist employment adjudicative bodies. This remains the case under the Employment Relations Act 2000 (the Act). It established two specialist employment bodies: the Employment Relations Authority (the Authority) and the Employment Court.”
The Employment Relations Authority has exclusive jurisdiction to make determinations about 'employment relationship problems generally'.
“The Authority has exclusive jurisdiction to make determinations about employment relationship problems generally...”
The term 'employment relationship problem' is defined to include 'a personal grievance, a dispute, and any other problem relating to or arising out of an employment relationship'.
“employment relationship problem includes a personal grievance, a dispute, and any other problem relating to or arising out of an employment relationship, but does not include any problem with the fixing of new terms and conditions of employment”
The concept of an 'employment relationship problem' is a factual category, not a legal one. The inquiry is whether the problem relates to or arises out of the employment relationship.
“Against this background, it is clear that “problem” is a factual category, not a legal one. It follows, then, that whether the problem “relat[es] to or aris[es] out of” the employment relationship is also a factual enquiry.”
The test for whether a controversy is an 'employment relationship problem' is whether it arises during the course of the employment relationship and in a work context.
“If the controversy arises during the course of the employment relationship and in a work context, then it will be an employment relationship problem. That is because the expectations arising out of an employment relationship apply only in a work context.”
The approach of basing the Authority's jurisdiction on the form of the pleading (e.g., tort vs contract) is incorrect as it would defeat the purpose of the specialist scheme and allow parties to plead around the Authority's exclusive jurisdiction.
“It would defeat the purpose of the specialist scheme to base the Authority’s exclusive jurisdiction on the form of the claimant’s pleading, thereby permitting parties to plead their way around that very exclusivity.”
Employment relationship problems that can be framed as any of the specific examples in s 161(1)(a)–(qd) of the ERA must be brought in the Authority.
“...as a starting point, employment relationship problems that can be framed as any of the examples in s 161(1)(a)–(qd) must be framed that way and cannot be brought in any other jurisdiction.”
The tort exception in s 161(1)(r) applies only where an employment relationship problem cannot be framed in any way other than as a tort claim. It modifies the sub-class of 'any other action' in paragraph (r) and does not create a general carve-out for all employment-related torts.
“Only where an employment relationship problem cannot be framed in any way except as a tort claim does the exception in s 161(1)(r) apply. This is, in any event, the most sensible construction of the text of the provision. It recognises that the tort exception sits inside s 161(1)(r) and so should only affect the subclass (“any other action”) in that clause.”
Cases mentioned in judgment
Legislation mentioned
- Employment Relations Act 2000, s 3, s 4, s 5, s 99, s 100, s 103, s 114, s 123, s 137, s 143, s 156, s 157, s 159, s 160, s 161, s 162, s 172A, s 178, s 179, s 186, s 187, s 194
- Employment Contracts Act 1991, s 43, s 45, s 73, s 78
- Companies Act 1993, s 131-137
- Human Rights Act 1993
- Intelligence and Security Act 2017, s 171(3)
- Patents Act 2013, s 28, s 30
- Privacy Act 2020